By Kelly Godfrey

In December 2020, the Federal Government introduced into Federal Parliament the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (the Bill).

The Bill proposes, among other things, to:

• insert a statutory definition of casual employee into the Fair Work Act 2009 (Cth) (FW Act);
• insert a statutory mechanism for the conversion of casual employment to full-time or part-time employment; and
• require that courts offset any casual loading amounts paid to a casual employee against amounts later found owing to that employee, if it is found the employee was not a casual employee.

Casual employee definition

The proposed definition provides that a person is a casual employee of an employer if the employer makes an offer of employment that the employee accepts on the basis that “the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”.

The Bill indicates that determination would be only based on whether:

• the employer can elect to offer work, and the employee can elect to accept or reject work;
• the employee will work only as required;
• the employment is described as “casual employment”; and
• the employee will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or enterprise agreement.

This means that:

• a regular pattern of hours does not of itself indicate the employment is not casual in nature;
• whether a person is a casual employee is to be assessed on the basis of the initial offer and acceptance of employment, and not on the parties’ subsequent conduct; and
• the person will remain a casual employee until either:
  • their employment converts to full-time or part-time; or
  • the employee accepts an alternative offer of employment.

The Bill replaces the term “long-term casual employee” with “regular casual employee”, being a casual employee who has been employed by the employer on a regular and systematic basis. Parental leave and the right to request flexible work would be extended to a regular casual employee.

Conversion to permanent employment

While the Bill provides mechanisms for the employer or employee to initiate conversion of casual employment to full-time or part-time, there is an ability for an employer not to offer casual conversion on reasonable grounds. Those reasonable grounds include where, within the following 12 months, the casual employee’s:

• position will cease to exist;
• hours of work will be significantly reduced;
• days, times or hours of work will change so that the employee won’t be available; or
• casual conversion offer would not comply with a state or federal statutory recruitment or selection process.

Under the Bill, the Fair Work Commission would have the power to deal with disputes about casual conversion, unless an alternative dispute procedure is contained in an enterprise agreement, employment contract, or other agreement between the employee and employer.